Bennett v. Astrue

Filing 26

MEMORANDUM OPINION AND ORDER entered. Upon consideration of the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 7/24/2013. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
MILDRED J. BENNETT,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commission of Social Security,
Defendant.

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CIVIL ACTION 12-0695-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 1383(c)(3), Plaintiff
seeks judicial review of an adverse social security ruling which
denied a claim for Supplemental Security Income (hereinafter
SSI) (Docs. 1, 16).

The parties filed written consent and this

action has been referred to the undersigned Magistrate Judge to
conduct all proceedings and order the entry of judgment in
accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc.
25).

Oral argument was waived in this action (Doc. 24).

Upon

consideration of the administrative record and the memoranda of
the parties, it is ORDERED that the decision of the Commissioner
be AFFIRMED and that this action be DISMISSED.
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th

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Cir. 1983), which must be supported by substantial evidence.
Richardson v. Perales, 402 U.S. 389, 401 (1971).

The

substantial evidence test requires “that the decision under
review be supported by evidence sufficient to justify a
reasoning mind in accepting it; it is more than a scintilla, but
less than a preponderance.”

Brady v. Heckler, 724 F.2d 914, 918

(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205 (D.
Md. 1982).
At the time of the most recent administrative hearing,
Plaintiff was fifty-four years old, had completed a tenth-grade
education (Tr. 27), and had previous work experience as a fish
fileter (Tr. 432).

In claiming benefits, Bennett alleges

disability due to high blood pressure, headaches, an enlarged
thyroid, tachycardia, mild mental retardation, and obesity (Doc.
17).
The Plaintiff filed an application for SSI on March 22,
2007 (Tr. 79-81; see also Tr. 397).

Benefits were denied

following a hearing by an Administrative Law Judge (ALJ) who
determined that Bennett could return to her past work as a hand
packager or fish fileter (Tr. 16-22).

Plaintiff challenged that

action in this Court where U.S. Magistrate Judge Bivins held
that the Appeals Council had not properly considered newlysubmitted evidence (Tr. 477-93); see also Bennett v. Astrue, 100005-B (S.D. Ala. January 3, 2011).

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On remand, following

another evidentiary hearing, the ALJ determined that although
Bennett was not capable of doing any of her past relevant work,
there were specific jobs that she could perform (Tr. 397-421).
Plaintiff requested review of the hearing decision (Tr. 562) by
the Appeals Council, but it was denied (Tr. 388-92).
In bringing this action, Plaintiff claims that the opinion
of the ALJ is not supported by substantial evidence.
Specifically, Bennett alleges that:

(1) The ALJ improperly

discounted the opinions of a psychological consultant; and (2)
she meets the requirements of Listing 12.05C (Doc. 16).
Defendant has responded to—and denies—these claims (Doc. 20).
The relevant evidence of record follows.1
Records from Robert C. Hatch High School show that
Plaintiff’s final scores, after completing her eighth grade
studies, were a D in English, an F in Math, a C in Science, a D
in Social Studies, and an A in Music (Tr. 589-91).

In ninth

grade, Bennett scored D’s in English and Science, an F in
physical education, a C in Home Economics, and received an
incomplete in Social Studies.
On June 25, 2009, Psychologist Donald Blanton examined
Plaintiff and noted that she was obviously mentally retarded
(Tr. 385; see generally Tr. 383-87).

The Psychologist noted

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The Court will review only the evidence that is relevant to the
particular claims raised in this action.

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that Bennett was “not sure about having had nervous trouble or
depression, but thinks she is down sometimes.

She has had no

prior history of any mental health care” (Tr. 384).

Blanton

noted she responded to his questions very slowly; thoughts and
conversation were simple, but logical.

Associations were

intact; affect was flat, but appropriate.
noted; Bennett denied any anxiety.

No confusion was

Plaintiff was alert; her

insight was limited and judgment was considered fair.

Bennett

reported that her daily activities included cooking, cleaning,
mopping, and sweeping; she had a driver’s license and did drive.
Plaintiff attended church occasionally, had no hobbies or
interests, and did not participate in parties or clubs.
Psychologist Blanton administered the Wechsler Adult
Intelligence Scale-IV (hereinafter WAIS-IV) on which Plaintiff
scored 70 on verbal comprehension, 67 on perceptual reasoning,
71 on working memory, 71 on processing speed, and had a full
scale IQ score of 64.

Blanton indicated that these results

placed her in the mild range of mental retardation.

Bennett

also took the Wide-Range Achievement Test (Revised III)
(hereinafter WRAT (R-III)) on which she scored 66 in reading
(fourth-grade level), 63 in spelling (fourth-grade level), and
75 in arithmetic (fifth-grade level).

The Psychologist

indicated his belief that these tests were a valid assessment of
her intellectual functioning as “there were no distracting

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factors during the testing session and she appeared to put good
effort into her work” (Tr. 386).
mild mental retardation.

He diagnosed Bennett to have

Blanton went on to express the opinion

that Plaintiff had “marked limitations that seriously
interfere[d] with her ability to perform work related activities
on a day to day basis in a routine work setting in . . . (1)
understanding detailed or complex instructions[;] (2) carrying
out detailed or complex instructions[;] (3) remembering detailed
or complex instructions[; and] (4) using judgment in detailed or
complex work related decisions” (Tr. 387).

The Psychologist

further indicated that Bennett’s mental retardation was a
lifelong condition.
On March 24, 2011, Psychologist Richard S. Reynolds
examined Plaintiff who denied any history of psychiatric
treatment; she had never sought treatment although she reported
severe symptoms of depression (Tr. 603-09).

Bennett reported

crying all the time, having a low mood, always feeling down,
having very low energy, feeling significant hopelessness, and
often feeling irritable; the Psychologist noted that these
symptoms appeared exaggerated, finding her mildly dysphoric.
Reynolds noted that Plaintiff described self-care and daily
functioning.

Bennett stated that she completed tenth grade in

regular classes; she did her own cooking and housework, managed
her own finances, went grocery shopping with her daughter, and

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spent her time talking to friends or watching television.
Plaintiff was oriented in all spheres with articulate speech;
thought content appeared logical while associations were tight.
Recent and remote memory were intact; insight was appropriate to
situation while judgment was appropriate by daily self-care.

On

the WAIS-IV, Bennett received a Full Scale IQ score of 52.
Psychologist Reynolds expressed the opinion that the scores were
invalid as Plaintiff gave poor effort; he specifically noted
that her abilities in general information, vocabulary, and
verbal abstract reasoning were greater during the interview than
the test scores demonstrated.

He further noted that her claimed

symptoms were significantly greater than the interview would
support; the Psychologist stated that when he questioned Bennett
about her symptoms, she became vague and elusive.

It was

Reynolds’s opinion that Plaintiff was “able to understand
remember and carryout instructions in a work setting[;] able to
appropriately interact with supervisors [and] co-workers in a
work setting[; and did] not demonstrate significant impairment
due to depression or other psychiatric disorder” (Tr. 608).

It

was the Psychologist’s opinion that Bennett may suffer from
Adjustment Disorder with depressed mood due to medical
difficulties; he stated that he reviewed her medical records in
reaching this conclusion.

Reynolds also completed a mental

medical source opinion form in which he indicated that Plaintiff

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had no restrictions in her ability to understand and remember
simple or complex instructions; carry out simple or complex
instructions; or make judgments on simple or complex workrelated decisions (Tr. 603).

Psychologist Reynolds also

expressed the opinion that Plaintiff would have no limitations
in her ability to interact appropriately with the public,
supervisors, or co-workers or respond appropriately to usual
work situations or to changes in a routine work setting (Tr.
604).
On June 15, 2011, Psychologist Blanton again examined
Bennett who was complaining of migraine headaches (Tr. 619-23).
She reported being sad all of the time, being depressed, crying
a lot about everything, and having panic attacks two-to-three
times a week; Plaintiff said that she began having emotional
problems a long time ago; she had no prior history of any mental
health care.

Blanton stated that Bennett was easily confused

while also stating that “[n]o confusion was noted” (Tr. 620).
The Psychologist found that she had a hard time recalling events
and dates in her life; thoughts and conversation were logical.
Plaintiff was alert, associations were intact, and affect was
flat but appropriate; mood was depressed and Bennett cried
often.

Blanton noted that she appeared to have a slight

psychomotor retardation; she reported having been suicidal at
times, though she had made no attempts on her life.

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Insight was

limited and judgment was fair.

Bennett reported that she cooked

and cleaned with help from her daughter and was able to shop and
handle money; she attended church occasionally and spent most of
her day watching television and napping.

On the WAIS-IV,

Plaintiff scored a 61 on verbal comprehension, 73 on perceptual
reasoning, 69 on working memory, 71 on processing speed, and had
a full scale IQ score of 63, placing her in the mild range of
mental retardation.

On the WRAT (R-III), Bennett scored a 47 in

reading (second-grade level), a 51 in spelling (second-grade
level), and a 65 in math (third-grade level).

Blanton noted

that the MMPI was omitted due to the combination of Plaintiff’s
low intellect and poor reading ability; the examiner helped her
with the Beck Depression Inventory-II on which she scored in the
seriously depressed range.

The Psychologist thought that the

test results were a valid assessment of her intellectual
functioning as there were no distractions and Bennett had put
forth good effort; he found her to be functionally illiterate
and significantly depressed, referring her to a local mental
health center.

In his assessment, Blanton diagnosed Plaintiff

to suffer from major depression, a panic disorder with
agoraphobia, and mild mental retardation.

The Psychologist

expressed the opinion that Bennett had marked limitations that
would interfere with her ability to do the following:
understand, carry out, and remember detailed or complex

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instructions; use judgment in detailed or complex work-related
decisions; maintain attention and concentration and pace for at
least two hours; and respond to customary work pressure.

It was

Psychologist Blanton’s opinion that Bennett’s mental retardation
was a lifelong condition and that her depression and anxiety had
been present for at least one year.

He further noted that she

had deficits in adaptive functioning in her ability to
communicate, take care of her self, work, and use community
resources that had been manifest prior to turning twenty-two
years old.
Records from the Cahaba Mental Health Center show that, on
June 20, 2011, Plaintiff reported to the Center that she had
been referred to by her treating physician for depression (Tr.
625-29).

She was described as dysphoric, irritable, and

paranoid; judgment was adequate.

Bennett had no homicidal or

suicidal thoughts; she stated that she cried sometimes for no
known reason.

On July 20, Plaintiff was anxious and dysphoric;

she described her sleep as poor.

Bennett reported restlessness

due to back and leg pain.
The ALJ faithfully summarized the medical evidence and
found that Bennett was capable of performing less than a full
range of light work, naming specific jobs that she could perform
(Tr. 397-421).

In reaching this determination, the ALJ found

that Plaintiff had no severe mental impairments (Tr. 400), a

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finding not challenged in this action (see Doc. 16).

The ALJ

also found that Bennett’s testimony regarding her abilities and
limitations was not credible (Tr. 406-06, 408, 414-15, 419);
this finding has also gone unchallenged.
In bringing this action, Plaintiff has asserted that the
ALJ improperly discounted the opinions of a psychological
consultant.

More specifically, Bennett asserts that the

conclusions of Psychologist Blanton were rejected for no valid
reason (Doc. 16, pp. 2-6).

It should be noted that "although

the opinion of an examining physician is generally entitled to
more weight than the opinion of a non-examining physician, the
ALJ is free to reject the opinion of any physician when the
evidence supports a contrary conclusion."

Oldham v. Schweiker,

660 F.2d 1078, 1084 (5th Cir. 1981);2 see also 20 C.F.R. §
404.1527 (2013).

In her determination, the ALJ accepted Blanton’s findings
that Plaintiff had some marked limitations (Tr. 416), but
rejected his finding that she had marked limitations “in her
ability to maintain attention, concentration and pace for at
least two hours,” noting that she had undergone a set of
psychological tests under his direction, showing the capability

2The Eleventh Circuit, in the en banc decision Bonner v. City of

Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as precedent
decisions of the former Fifth Circuit rendered prior to October 1,
1981.

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of completing the tests in a timely manner while putting forth
good effort (Tr. 418).

The ALJ also rejected Blanton’s finding

that Bennett was markedly limited in her ability to respond to
customary work pressure, noting that Plaintiff’s own statements
to Psychologist Reynolds had indicated otherwise (Tr. 418).

The

ALJ went on to discount Blanton’s opinions that Bennett had a
lifelong mental deficiency (Tr. 416) and demonstrated deficits
in adaptive functioning due to mental retardation (Tr. 419).3
Finally, the ALJ found that “Dr. Blanton’s opinions are without
substantial support from the other evidence of record and the
doctor’s reports appear to contain inconsistencies, which
obviously renders them less persuasive” (Tr. 419).
The Court finds substantial support for the ALJ’s rejection
of Blanton’s conclusions.

Primarily, the Court notes that his

findings are at direct odds with those of Psychologist Reynolds
whose opinions were given “considerable probative value” by the
ALJ (Tr. 417).

The Court agrees with the ALJ’s conclusion that

Blanton’s findings were internally inconsistent; for example, in
his second examination, Blanton stated that Bennett was easily
confused while also stating that “[n]o confusion was noted” (Tr.
620).

Finally, there is no other evidence in the record to

support the marked limitations suggested by the Psychologist.

3The Court finds substantial supports for these two

conclusions but will discuss them in analyzing Plaintiff’s claim
that she meets the requirements of Listing 12.05C.

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The Court finds Plaintiff’s claim that the ALJ did not properly
consider the conclusions of Psychologist Blanton to be without
merit.
Bennett next claims that she meets the requirements of
Listing 12.05C (Doc. 16, pp. 6-7).

The introductory notes to

Section 12.05 state that “[m]ental retardation refers to a
significantly subaverage general intellectual functioning with
deficits in adaptive behavior initially manifested during the
development period; i.e., the evidence demonstrates or supports
onset of the impairment before age 22.”

20 C.F.R. Part 404,

Subpart P, Appendix 1, Listing 12.05 (2013).

Subsection C

requires "[a] valid verbal, performance, or full scale IQ of 60
through 70 and a physical or other mental impairment imposing an
additional and significant work-related limitation of function."
20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 12.05C
(2013).
The Court notes that although the regulations require that
Plaintiff demonstrate that she suffered “deficits in adaptive
behavior” before she turned twenty-two, 20 C.F.R. Part 404,
Subpart P, Appendix 1, Listing 12.05 (2013), the Eleventh
Circuit Court of Appeals, in Hodges v. Barnhart, 276 F.3d 1265,
1266 (11th Cir. 2001), has held “that there is a presumption that
mental retardation is a condition that remains constant
throughout life.”

The Hodges Court further held “that a

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claimant need not present evidence that she manifested deficits
in adaptive functioning prior to the age of twenty-two, when she
presented evidence of low IQ test results after the age of
twenty-two.”

Hodges, 276 F.3d at 1266.

In her determination, the ALJ found that Bennett did not
meet the requirements of Listing 12.05C (Tr. 401).

In reaching

this determination, the ALJ found that Plaintiff had only mild
restrictions of daily living and social functioning, pointing to
her own statements to Psychologists Blanton and Reynolds (Tr.
401-02).

Bennett had moderate difficulties with regard to

concentration, persistence, or pace, relying on the
Psychologists’ reports that she had completed testing in a
timely manner and been “able to understand, remember and carry
out instructions in a work setting;” Blanton had even noted that
Plaintiff put forth good effort (Tr. 402).

The ALJ found that

Bennett had never experienced any episodes of decompensation of
extended duration, noting that she had never required any
treatment or had been specifically accommodated so that she
could complete her work assignments (Tr. 402).

The ALJ noted

that Plaintiff was not dependent on others for her personal
needs; the evidence also demonstrated that she was able to
follow instructions (Tr. 403).

The ALJ went on to find that

Plaintiff did not have deficits in adaptive behavior that had
been manifest before she turned twenty-two years of age,

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specifically finding the following:
This claimant has lived independently and
has been the responsible adult figure for
her own family. There is no indication in
the record that any employer has ever given
the claimant any special consideration due
to any alleged mental deficiency or that any
employer has ever even noticed any alleged
mental deficiency on the part of the
claimant. The claimant holds a valid
Alabama drivers’ license and the claimant
testified that she took the written
examination to pass. There is no indication
in the record that the claimant was in
“special education” or any other program for
mentally deficient persons or that anyone at
any one of the claimant’s schools ever
noticed any alleged mental deficiency. The
claimant reported that she was never
retained in school. She has never been
institutionalized or hospitalized for any
alleged mental or emotional impairment. The
record does not indicate that the claimant
ever suffered from any alleged mental
impairment or that claimant’s alleged mental
deficiency manifested itself until after she
was denied disability for physical
complaints. The claimant was well oriented
at the hearing as to time, place and
situation.
(Tr. 403-04).
The Court finds substantial support for the ALJ’s
conclusions.

The Court is mindful of the Hodges presumption

that “mental retardation is a condition that remains constant
throughout life,” but finds, in spite of the IQ test scores
reported by Psychologist Blanton, that the ALJ has fairly and
objectively rebutted that presumption in this action.

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The

evidence of record belies the claim that Bennett has been
mentally retarded her whole life.
Plaintiff has raised two claims in bringing this action.
Both are without merit.

Upon consideration of the entire

record, the Court finds "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion."
Perales, 402 U.S. at 401.

Therefore, it is ORDERED that the

Secretary's decision be AFFIRMED, see Fortenberry v. Harris, 612
F.2d 947, 950 (5th Cir. 1980), and that this action be
DISMISSED.

Judgment will be entered by separate Order.

DONE this 24th day of July, 2013.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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